Punjab-Haryana High Court
Jeet Ram vs State Of Haryana on 27 January, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Naresh Kumar Sanghi
Criminal Appeal No. 492-DB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH
Criminal Appeal No. 492-DB of 2007
Date of Decision: 27th January, 2012
Jeet Ram ..Appellant
Versus
State of Haryana ..Respondent
and
Criminal Appeal No. 493-DB of 2007
Smt. Kishanwati ..Appellant
Versus
State of Haryana ..Respondents
CORAM:HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr; R.S.Rai, Senior Advocate
with Mr. D.S.Brar, Advocate
for the appellant.
Mr. S.S.Randhawa, Additional Advocate
General, Haryana for the respondent-State.
RAJIVE BHALLA, J.
By way of this judgment, we shall dispose of Criminal Appeal Nos. 492-DB of 2007 Jeet Ram versus State of Haryana and 493-DB of 2007 Kishanwati versus State of Haryana, as they arise from the same judgment.
The appellants challenge judgment dated 13.4.2007 and order dated 16.4.2007 passed by the Additional Sessions Judge, Faridabad, convicting them under section 302 read with section 34 of Criminal Appeal No. 492-DB of 2007 2 the Indian Penal Code and sentencing them to undergo imprisonment for life and to pay a fine of Rs.50,000/- each. In default thereof, to further undergo rigorous imprisonment for two years each. The appellants have also been convicted under section 498-A read with section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.5000/- each. In default thereof, to further undergo rigorous imprisonment for six months each. Both sentences have been ordered to run concurrently.
Smt. Kavita, daughter-in-law, of appellants was admitted to General Hospital, Ballabgarh on 12.5.2005 with severe burn injuries. A ruqa (intimation), Ex.P4, was received in Police Station Ballabgarh. ASI Ran Singh, PW 15, reached General Hospital, Ballabgarh and presented an application, Ex.P37, before PW 4 Dr. Rajiv Batish, Medical Officer, General Hospital, Ballabgarh, seeking his opinion whether Smt. Kavita is fit to make a statement. Dr. Rajiv Batish informed, ASI Ran Singh, that Smt. Kavita has been referred to Safdarjang Hospital, Delhi. ASI Ran Singh, accompanied by Constable Baljit Singh, left for Safdarjang Hospital, Delhi. Upon arrival at Safdarjang Hospital, the Assistant Sub Inspector, filed an application, dated 12.5.2005, Ex.P38, before a doctor for recording his opinion whether Smt. Kavita is fit to make a statement. The doctor recorded an opinion, Ex.P46, at 12.25 P.M., on the application, Ex.P38, that the patient is conscious, oriented and at present fit to make a statement. ASI Ran Singh recorded the statement of Smt. Kavita, Ex P39, between 2.30 P.M and 3.30 P.M. Criminal Appeal No. 492-DB of 2007 3 Smt. Kavita made a detailed statement narrating the harassment by her mother and father-in-law, demands of dowry, repeated beatings etc. She also stated that as she was fed up with the harassment, she left her matrimonial home, but as she has three children, she was persuaded by her husband to return. The atmosphere remained normal for about 1-1/2 months, but thereafter her father-in-law started harassing her. Her mother-in-law used to drink milk, whereas water was mixed in the milk given to children. She woke up at 3.30/3.45 A.M., daily, to do household chores. Her husband did not harass or beat her and did not take sides. At about 6 O' Clock, she prepared tea for her mother and father-in-law, but they refused to take tea. She milched the buffalo and after giving milk to the children, started preparing chapaties on a `chulla'. A short while later, her mother-in-law brought a can of kerosene oil, which was normally kept inside the house and poured it on her (Smt. Kavita). She got up and started running, but her clothes caught fire from the `chulla'. She ran out of the house and the fire was extinguished by neighbours. She also stated that at that time, her father-in-law was standing nearby and her husband was asleep. Her husband Om Parkash etc., removed her to General Hospital, Ballabgarh, for treatment.
After recording this statement, Smt. Kavita affixed her right thumb impression in the presence of PW 12 Des Raj, her uncle and PW 13 Sanjeet, her brother. The statement was attested by Ran Singh ASI.
FIR No. 123 dated 12.5.2005 was registered under section Criminal Appeal No. 492-DB of 2007 4 498-A IPC at Police Station Sadar Ballabgarh. but after Kavita passed away on 15.5.2005 due to burn injuries, section 302 of the Indian Penal Code was added vide report no.19, Ex.P42. The post mortem was conducted by PW 5 Dr. Deepak Mathur on 16.5.2005. The post mortem report records the smell of kerosene, external burn injuries all over the body except lower pelvic region, both legs and soles etc. The doctor opined that the deceased had suffered 90% burns and the cause of death was the ante mortem thermal burns.
In the meanwhile, ASI Ran Singh, the Investigating Officer, arrested the appellants and pursuant to a disclosure statement, Ex.P34, made by Smt. Kishanwati, the can, Ex.P36, used for pouring kerosene was taken into possession vide recovery memo Ex.P35. A rough site plan showing the place of recovery of the can was also prepared. The rough site plan, Ex.P40 of the place where the deceased was preparing chapaties; the place in the street where neighbours extinguished the fire and the place where kerosene oil was still lying on the floor was prepared. Ex.P41 is the recovery memo of kerosene oil lifted from the soil of the courtyard. The medico-legal report prepared by Dr. Rajiv Batish, at Ballabgarh is Ex. P23. The Investigating Officer recorded statements of the mother, father, brother, and uncle of the deceased about harassment, meted out to the deceased, the demands of dowry raised by the appellants and that Kavita has been murdered. Upon conclusion of investigation, a final report was filed before the area magistrate, who committed the case to the court of Session.
The Additional Sessions Judge, Faridabad (hereinafter Criminal Appeal No. 492-DB of 2007 5 referred to as "trial court") framed charges under sections 302 and 498-A read with section 34 of the Indian Penal Code against the appellants, and Om Parkash, husband of the deceased. All the accused pleaded not guilty. The trial court called upon the prosecution to lead its evidence.
In order to prove the culpability of the accused, the prosecution has examined the following witnesses:
PW 1 Constable Harinder Singh delivered the special report to the Ilaqa Magistrate, the Deputy Superintendent of Police, the Superintendent of Police, Faridabad and the Inspector General of Police, Gurgaon.
PW 2 Constable Akhtar Hussain delivered the special report to the aforementioned officers, after section 302 IPC was added.
PW 3 Manoj Kumar, Draftsman, CIA Office, Faridabad, prepared a scaled site plan of the place of occurrence.
PW 4 Dr. Rajiv Batish, Medical Officer, General Hospital, Ballabgarh, medico-legally examined Smt. Kavita and proved his medico-legal report, Ex.P3. He has deposed that Smt. Kavita was admitted to the hospital on 12.5.2005 at 7.55 A.M. She smelt of kerosene and had suffered 1st and 2nd degree burns all over her body except some parts of both feet and lower limbs. The burns were approximately 90%, Smt. Kavita was referred to Safdarjang Hospital, New Delhi. Doctor Batish also proved the ruqa Ex.P4.
PW 5 Dr. Deepak Mathur, Senior Resident, Safdarjang Hospital, New Delhi, conducted the post mortem on the dead body on 16.5.2005. He has deposed about the smell of kerosene from Criminal Appeal No. 492-DB of 2007 6 the scalp and hair, external burn injuries all over the body except lower parts of the pelvic region, perineum, both legs and soles. Scalp hair were burnt upto the root in the mid parietal and occipital region. The total burnt area was approximately 90%. He has also opined that the cause of death was shock, caused by ante mortem thermal burns. No cross-examination was directed against this witness.
PW 6 Head Constable Satbir Singh tendered his affidavit, Ex.P7 in evidence PW 7 Ravinder Kumar, ASI, Police Station, Sadar Ballabgarh, has deposed that he received a ruqa from ASI Ran Singh, through constable Baljit Singh on which he recorded FIR Ex.P1 at 5.40 P.M. and then made endorsement, Ex.P8, below the ruqa.
PW 8 ASI Balbir Singh, Police Station Inderpuri, New Delhi, has deposed that Smt. Kavita died of burn injuries at Safdarjang Hospital, New Delhi on 14.5.2005. Before her death, he had moved an application Ex.P9 on 12.5.2005 seeking the opinion of the doctor regarding fitness of Smt. Kavita to make a statement, but Dr. Kali Parshad opined at 5.35 P.M. vide Ex.P9/A that she is unfit to make a statement. The post mortem was conducted on 16.5.2005. He prepared inquest report Ex.P6 on 16.5.2005;
PW 9 Jai Singh father of Smt. Kavita, deceased, made a statement before the police that Smt. Kavita was harassed, demands for dowry were raised etc., but when he stepped into the witness box, resiled from this statement and deposed that he had not made any such statement to the police, Jai Singh was declared Criminal Appeal No. 492-DB of 2007 7 hostile, cross-examined by the Public Prosecutor and by counsel for the accused. During his cross-examination by counsel for the accused, he admitted that Smt. Kavita was under depression and also stated that she had never informed him of any grievance of any kind. He also deposed that Smt. Kavita had not told him anything in the hospital.
PW 10 Smt. Girraji wife of Shri Jai Singh, mother of the deceased, followed the course set by her husband and denied that she had ever made any statement before the police or that Smt. Kavita had told her about the demands of dowry, harassment etc. She was also declared hostile and cross-examined by the Public Prosecutor.
PW 11 Gopi Chand son of Charan Singh, Photographer, proved the photographs of the place of occurrence, Exs. P12 to P31 PW 12 Des Raj, an uncle of the deceased also resiled from his statement, Ex.P3 made to the police and denied that Smt. Kavita was ever tortured or harassed or that any demand of dowry was ever made by the accused. He also denied that the dying declaration was recorded in his presence, but while admitting his signatures on the dying declaration deposed that his signatures were obtained, in the varandah of the hospital. He also deposed that Smt. Kavita was not in a position to talk even though he attempted to talk to her. He has also deposed that the doctor was not present at the time of recording the statement of Smt. Kavita.
PW 13 Sanjeet is the real brother of the deceased. He has denied that Smt. Kavita made any statement before the police that Criminal Appeal No. 492-DB of 2007 8 kerosene was poured by her mother-in-law Kishanwati. He was declared hostile and cross-examined. He denied having attested the statement made by Smt. Kavita before the police.
PW 14 Udai Raj, Sub Inspector, SHO, Police Station, Old Faridabad,conducted the investigation and arrested the accused Jeet Ram and Om Parkash on 24.5.2005 and Kishanwati on 31.5.2005. He has deposed that he recorded the disclosure statement of Kishanwati Ex.P34, effected recovery of one plastic can of kerosene from a cupboard in the house of Kishanwati, prepared a rough site plan, recorded the statements of the witnesses and submitted the final report under section 173 of the Code of Criminal Procedure.
PW 15 Ran Singh, ASI, is the Investigating Officer, who visited General Hospital, Ballabgarh and after being told that Smt. Kavita has been shifted to Safdarjang Hospital, Delhi, proceeded to the said hospital, filed applications for seeking opinion of the doctor whether Kavita is fit to make a statement and when the doctor opined that Kavita is fit to make a statement, recorded her statement. He has deposed about the filing of an application before the doctor and the recording of the dying declaration in the presence of Des Raj and Sanjeet, PW 12 and PW 13, respectively, the affixing of the right thumb impressions by the deceased and the fact that she made the statement voluntarily.
PW 16 Jalandhar Singh, Constable, tendered his affidavit Ex.P43 in evidence. Exhibits P44 and P45, FSL reports, were also tendered into evidence.
PW 17 Abhey Ram, Record Clerk, Safdarjang Hospital, Criminal Appeal No. 492-DB of 2007 9 New Delhi, brought the summoned record with respect to Kavita's admission in Safdarjang Hospital; identified the signatures of Dr. Kali Parshad on the application Ex.P38 recording opinion that Kavita is fit to make statement. The opinion recorded by Dr. Kali Parshad is Ex.P46.
A perusal of the interim orders passed by the trial court, reveal that Dr. Kali Parshad could not be produced as he had left his service at Safdarjang Hospital and could not be found at his address in Orissa.
After recording prosecution evidence, the trial court put the incriminating circumstances to the accused, under section 313 of the Code of Criminal Procedure. The accused denied the allegations and pleaded that on the fateful day, Kavita caught fire as a pot containing kerosene oil fell on her while she was cooking meals. She was immediately rushed to the hospital where she unfortunately succumbed to burn injuries. The accused denied that Smt. Kavita had ever made any statement while admitted in hospital as she was not in her senses and stated that her statement was fabricated by the police.
After considering the evidence on record, arguments addressed by the Public Prosecutor and counsel for the defence, the learned trial court acquitted Om Parkash, husband of the deceased, but convicted the appellants by relying upon the dying declaration and disbelieving the defence that a can of kerosene fell on the deceased accidentally.
Counsel for the appellants submits that the appellants' Criminal Appeal No. 492-DB of 2007 10 conviction and sentence is illegal. The culpability of the appellants, namely, the father and mother-in-law of the deceased is based upon the dying declaration, Ex.P39. As per medical evidence, Smt. Kavita sustained 90% burns. She was under heavy sedation and could not, possibly have made the statement. It is further submitted that the dying declaration has been recorded by ASI Ran Singh, PW 15, a police official, without making any attempt to secure the presence of a magistrate. The Investigating Officer has deposed that he approached a Sub Divisional Magistrate at Delhi for recording the statement but the officer refused to record the statement. The Incharge Police Post Safdarjang Hospital told him that the magistrate will not record the statement. He has, however, admitted that he did not record these facts, in the case diary thereby clearly establishing the falsity of his deposition and pointing to the fact that he prepared a false dying declaration to implicate the appellants. It is further argued that though the doctor gave his opinion that Smt. Kavita is fit to make a statement at 12.15 P.M., her statement was recorded at 2.30 P.M., without taking any fresh opinion as to her condition. In addition, no certificate was obtained from a doctor that Kavita was fit during her statement. The witnesses in whose presence, the statement was, allegedly, recorded are Des Raj PW 12 and Sanjeet PW 13, her uncle and brother who have, while deposing as prosecution witness, denied that any such statement was recorded in their presence. Des Raj, PW 12, has stated that his signatures were obtained in the corridor of the hospital. Both witnesses, have categorically stated that Kavita was not in a fit state of mind. It is Criminal Appeal No. 492-DB of 2007 11 also pointed out that Dr. Kali Parshad, who recorded his opinion that Kavita is fit to make a statement, has not been examined. It is further submitted that as witnesses of the dying declaration are an uncle and brother of the deceased, it would, necessarily, suggest that Kavita was tutored into making a false statement and her thumb impression was forcibly affixed. It is further argued that as doctors have deposed that the entire body was burnt, it was not possible for Kavita to affix her thumb impression. It is also argued that even if the dying declaration is accepted, no role is attributed to Jeet Ram, appellant, the father-in-law. The mere fact that Smt. Kavita has stated that he was standing nearby, does not raise an inference of culpability.
Counsel for the State of Haryana submits that the appellants have been rightly convicted for the murder of their daughter-in-law. It is true that deceased's father, mother, uncle and brother have not supported the prosecution on the point of motive, namely, harassment, giving beatings for dowry and Des Raj PW 12, uncle, and Sanjeet, PW 13, brother, have denied that the dying declaration was recorded in their presence, but the contents of the dying declaration read along with the statements made by the appellants under section 313 of the Code of Criminal Procedure and considered along with the location of the `chulla' clearly establish the truth of the dying declaration. Smt. Kavita has stated that she was preparing chapaties, when her mother-in-law poured kerosene oil on her. As she got up and ran, she caught fire from the chulla. In their statements under section 313 of the Code of Criminal Procedure, the Criminal Appeal No. 492-DB of 2007 12 appellants accept that Kavita caught fire from the chulla because of kerosene, but have stated that the can of kerosene fell on her, accidentally. A perusal of the site plan of the place of occurrence and the photographs reveal that the `chulla' is in the center of an open courtyard and nothing, much less a can of kerosene, could possibly fall accidentally, from above. The chulla is in the center of the courtyard and there is no place for keeping a can above the chulla, from where it could fall. It is further submitted that the dying declaration coupled with these facts, fully establishes the culpability of the appellants.
We have heard counsel for the parties, perused the impugned judgment and order and appraised the record with the assistance of counsel for the parties.
The prosecution case, as discernible from the dying declaration, is that while Smt. Kavita was preparing chapaties, Smt. Kishanwati, appellant, poured kerosene on Kavita and as Kavita tried to run away, she caught fire from the `chulla'. Jeet Ram, appellant, the father-in-law of the deceased, was standing by as a mute spectator. The case, as pleaded by the appellants in their statements recorded under section 313 of the Code of Criminal Procedure, is that, while Kavita was cooking chapaties, a can of kerosene oil fell upon her accidentally. The prosecution alleges a homicidal death, whereas the appellants admit to be an accidental death. The prosecution story is based upon the dying declaration, the site plan of the place of occurrence, the location of the `chulla' as indicated in the site plan, recovery of kerosene from the soil at the Criminal Appeal No. 492-DB of 2007 13 site, the photographs and the recovery of a plastic can containing kerosene. It would be appropriate to point out that prosecution witnesses who witnessed and signed the dying declaration have not supported the recording of the dying declaration.
The question that falls for adjudication is whether Kavita met a homicidal or an accidental death. Both the prosecution and the defence are one on the following facts: (a) Smt.Kavita was cooking chapaties on a chulla; (b) she caught fire from the chulla; ( c ) kerosene is the cause of fire. The difference between the two versions is the manner in which kerosene fell on the deceased.
The prosecution case that Kishanwati poured kerosene on Kavita while Jeet Ram was standing nearby, is based upon the dying declaration. The fate of this case would, therefore, depend upon the validity of the dying declaration.
After Smt. Kavita sustained burn injuries, she was taken to the General Hospital, Ballabgarh, where doctor Rajiv Batish, PW 6, prepared her medico-legal report confirming the smell of kerosene, 90% burn injuries and stated that she was unstable. He referred her to the Safdarjang Hospital, New Delhi, where she was admitted on the same day, i.e., 12th May, 2005. ASI Ran Singh, the Investigating Officer (PW 15) moved an application, Ex.P38, before Dr. Kali Parshad seeking his opinion whether Smt. Kavita is fit to make a statement. At 12.25 P.M., Dr. Kali Parshad recorded his opinion, Ex. P46, that "the patient is conscious, oriented at present and fit to give statement" but Sub Inspector Ran Singh, PW 15, recorded the statement of Smt. Kavita at 2.30 P.M., in the presence Criminal Appeal No. 492-DB of 2007 14 of her brother Sanjeet PW 13 and her uncle Des Raj PW12 without taking any further opinion from any doctor as to the state of the deceased or ensuring the presence of a doctor during the recording of the statement. The dying declaration reads as follows:
"Statement of Smt.Kavita w/o Om Parkash, caste Jat, R/o Jajru, P.S. Sdr.Bgarh, aged 26 years.
Stated that I am the resident of above address. My parental house is at Chaand Hut. My marriage had taken place on 1st February, 1998 with Om Parkash s/o Jeet Ram R/o Jajru. After few days of my marriage, my mother in law and father in law started harassing me for dowry that you have not brought motor cycle and many a times gave me beatings and if I had fallen ill, she did not provide me medical treatment. I remained at my parental house for 6/6 months even due to the harassment caused by them. I have three children and out of them, the eldest is my son named Harsh Vardhan, who is aged 5½ years, younger to him is Sumit, aged 3½ years, youngest is the daughter Geetika, aged 1½ years. Now, I have stayed at my parental house for a period of 5½ months. Now, about 3 months back, my husband-Om Parkash, brought me back to my matrimonial house on the assurance that there would be no problem for me, so come with me. That for 1-1½ months every thing remained perfectly alright but again my mother in law and Criminal Appeal No. 492-DB of 2007 15 father in law started harassing me and she used to drink milk herself but give milk mixed with water to the children. I used to do all the household works. I used to get up at 3½-3.45 AM daily. My husband had never harassed me nor did he ever give me beatings. He never took either their or my side. Today, at 6.00 AM, I have tea to my mother and father in laws but both of them did not take tea. Then, I milched the buffalo and after feeding milk to the children, went to prepare meals on the chullah. When atta of 2/3 chapaties had just left then, meanwhile my mother in law Kishan Wati brought the can of kerosene oil lying inside the house and poured kerosene oil over my person. I tried to stand up to run away but my clothes caught fire from the chullah. At that time, my father in law was also standing there. My husband was sleeping at that time. Then I came out while running and my neighbour extinguished fire. Thereafter, my husband Om Parkash and my younger mother in law Maya Devi after arranging the vehicle brought me to Ballabgarh for treatment but from there, I was referred to Delhi Hospital. Now, I have made my statement, heard and is correct. I cannot see.
RTI of Kavita Attested Ran Singh, ASI PS Sdr.Bgarh 12.5.05 Criminal Appeal No. 492-DB of 2007 16 At this time, a request has been made by Sh.Desh Raj s/o late Sh.Kishan Swaroop, Caste Jat, r/o Chaand Hut, uncle of Kavita and Sanjeet Kumar s/o Jai Singh, brother of Kavita, informing that the statement that Kavita has made before me, is absolutely correct and this statement has been recorded by me before them.
Sd/-(in Hindi) Sd/-(in English)
Desh Raj Sanjeet Kumar
Attested
Ran Singh, ASI
PS Sdr.Bgarh
12.5.05"
At this stage, it would be necessary to mention that Assistant Sub Inspector Balbir Singh, PW 8, Police Station Sarojni Nagar, a Police officer from the Delhi Police, also filed an application dated 12.5.2005, Ex. P9, before the doctor on duty, seeking his opinion whether Kavita is fit to make a statement and permission be granted for recording her statement, but at 5.35 P.M., on 12.5.2005 Dr. Kali Parshad, the same doctor who opined at 12.25 P.M. that she is fit to make a statement, made an endorsement that patient is unfit to make a statement.
The dying declaration bears the right thumb impression of Smt. Kavita and is witnessed by Des Raj, her uncle, Sanjeet, her brother, and is attested by ASI Ran Singh. The dying declaration recounts the deceased's harassment, mal-treatment etc., by the appellants during the course of her marriage and records that on the fateful day, while she was preparing chapaties, her mother-in-law, Criminal Appeal No. 492-DB of 2007 17 Kishanwati, brought a kerosene can, kept inside the house and poured it on her. As she got up and started running, her clothes caught fire from the chulla. Her father-in-law was standing nearby but her husband was asleep at that time. The dying declaration does not attribute any overt act to the father-in-law. The mere fact that he was standing nearby, in the facts and circumstances of the present case, does not raise an inference of a culpable state of mind sufficient to convict him, much less for an offence of murder.
We would now proceed to examine the dying declaration. A dying declaration, if proved in accordance with law, is relevant and substantive evidence of the cause of death. Circumstances so permitting a dying declaration can be the sole ground to raise an inference of a homicidal death, without further corroboration. However, as the author of a dying declaration cannot be subjected to cross-examination, certain safeguards have been evolved that should be followed, while recording a dying declaration, in hospital. As a general rule, courts tend to rely upon a dying declaration recorded before a magistrate, but there is no rule whether of precedent or prudence that only such a dying declaration shall be accepted as is recorded by a magistrate. A dying declaration does not require any particular format or form, but when it is recorded in a hospital, prudence would require the person recording the dying declaration to obtain a doctor's opinion as to the medical state and capability of the injured to make a statement, before recording the statement, ensure the presence of the doctor during the recording of the statement, and obtain an endorsement/certificate from the doctor Criminal Appeal No. 492-DB of 2007 18 that the injured remained mentally alert and fit during the recording of the dying declaration. The opinion of the doctor, prior to the statement should be, in close proximity to the recording of the statement and the presence of a doctor during the statement and his endorsement/certificate that the patient remained fit, conscious and capable of making the statement, in our considered opinion, would go a long way in believing a dying declaration, recorded in a hospital. Apart from these circumstances, the prosecution has to prove that the statement was not tutored, is not the product of a vengeful mind bent upon retribution, is free from exaggeration and the person making the statement had an adequate opportunity to witness the entire occurrence.
The dying declaration, in the present case, has not been recorded by a magistrate. It was recorded by the Investigating Officer Ran Singh, ASI (PW 15) in Safdarjang Hospital, in the presence of Des Raj and Sanjeet, an uncle and brother of the deceased. Des Raj and Sanjeet were cited by the prosecution, as witnesses but have denied that the dying declaration was recorded in their presence. PW 12 Des Raj has deposed that he signed the dying declaration in a corridor of the hospital. The dying declaration was preceded by the opinion of Dr. Kali Parshad at about 12.15 P.M., that Smt.Kavita is fit to make a statement. The signatures of Dr. Kali Parshad have been proved by PW 17 Abhey Ram, Record Clerk, Safdarjang Hospital, but as is apparent from dying declaration, neither Dr. Kali Parshad nor any other doctor was present during the recording of the dying declaration. The Investigating Officer did not ensure the presence of Criminal Appeal No. 492-DB of 2007 19 a doctor during the recording of the dying declaration obtain any endorsement or certificate from a doctor, that the deceased remained fit, conscious and capable of making the statement, during the course of its recording.
Another factor, is the gap of almost two hours and fifteen minutes between the opinion of the doctor that Kavita is fit for recording a statement and the actual recording of her statement. The doctor gave his opinion at 12.15 P.M., but the statement was recorded only at 2.30 P.M., then also without taking a fresh opinion from a doctor. It would also be necessary to once again mention that no doctor was present during the recording of the statement which was recorded in the presence of Des Raj, her uncle and Sanjeet, her brother, who have denied their presence at the time of recording of the dying declaration. It would also be necessary to point out that the mother and father of the deceased have also resiled from their statements made to the police and deposed in court that the deceased was not harassed or mal treated by her in-laws.
Another flaw in the prosecution case is that PW 15 Ran Singh, the Investigating Officer, has deposed that he requested a magistrate to record the statement, but the said magistrate refused to record the dying declaration. He has also deposed that he was informed by the Police Post Incharge that no magistrate would record the statement. As admitted by PW 15 Ran Singh, the Investigating Officer, these facts are not referred to in the case diary, thereby raising a doubt as to the truth of his deposition about an attempt to request a magistrate to record the statement of the deceased. It would also be appropriate to Criminal Appeal No. 492-DB of 2007 20 mention that at 5.35 P.M. on the same day when PW 8 Balbir Singh, a Police Officer from the Delhi Police, approached the same doctor for recording his opinion, he opined that the patient is unfit to make a statement. The Investigating Officer in our considered opinion, should have obtained a second opinion from the doctor before proceeding to record the dying declaration and ensured the presence of a doctor during the recording of the dying declaration.
As referred to hereinabove, the prosecution case is based upon the dying declaration and to some extent on the nature of the `chulla' and the courtyard, namely, that the location of the `chulla' rules out the possibility of the can of kerosene falling accidentally on the deceased, but as we have doubted the veracity of the recording of the dying declaration, a significant circumstance in the chain of circumstantial evidence alleged against the appellant, we have no option but to hold that the prosecution has failed to establish its case beyond a shadow of doubt.
In view of what has been stated hereinabove, we grant the benefit of doubt to the appellants, allow both the appeals, set aside the judgment of conviction and order of
sentence passed by the trial court and acquit the appellants of all the charges. The appellants be set at liberty forthwith if not required in any other case.
( RAJIVE BHALLA )
JUDGE
27th January, 2012 ( NARESH KUMAR SANGHI )
VK JUDGE